SANDEEP KUMAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) This is a revision petition filed against judgment dated 9th February, 1998 passed by the Additional District Judge, Jagadhri vide which Civil Appeal No. 41 of 1996 preferred against judgment and decree dated 10th October, 1996 passed by Shri M.C. Mehra, Additional Civil Judge (Senior Division) Jagadhri in Civil Suit No. 233 dated 30th April, 1993 tilted as Sandeep Kumar v. Rakesh Kumar and Anr. was dismissed.

(2.) The petitioner, Sandeep Kumar filed the aforesaid Civil Suit for the relief of the declaration to the effect that he was the owner in possession of plot No. 386 situated in Sarojini Colony, within the Municipal limits of Yamunanagar and also for the relief of mandatory injunction directing the respondent No. 2-Improvement Trust, Yamunangar to receive the balance instalments of the said plot from the plaintiff and for permanent injunction restraining the defendants i.e. Improvement Trust, Yamunanagar and Rakesh Kumar son of Shri Ved Parkash from interfering in actual physical possession of the plaintiff in respect of the said plot and/or from raising any construction forcibly on the said plot. After the service of the summons defendant Nos.l and 2 who are respondents in this revision put in appearance through their counsel and filed their written statements to the plaint filed by the petitioner. The learned trial Court framed issues arising out of the pleadings of the parties and listed the case for recording of plaintiffs evidence. As many as 11 issues were settled on 23rd January, 1995 which are mentioned in para 8 of the judgment. The case came up for hearing on 10th October, 1996 before Additional Civil Judge (Senior Division), Jagadhri when the learned counsel for the petitioner-plaintiff prayed for adjournment of the case on the ground that witnesses were not present. The prayer for adjournment was vehemently opposed by the respondent-defendants on the ground that sufficient opportunities had already been given to the plaintiffs but he failed to even examine himself as a witness. The learned trial Judge noticed that as many as seven opportunities had already been given to the plaintiffs but he failed to lead and conclude his evidence. He also noticed that the petitioner-plaintiff had been changing his counsels frequently. Plaintiff was even not present in Court for recording of his statement. Under these circumstances the learned trial Judge declined the prayer for adjournment of the case and proceed under Order 17 Rule 3 Civil Procedure Code and closed the evidence of the petitioner-plaintiff. Since there was no evidence- on record in support of the averments made in the plaint the suit was dismissed with costs. Feeling aggrieved against the said order dated 10th October, 1996, the plaintiff filed the civil appeal before the learned Additional District Judge, Jagadhri being Civil Appeal No. 41/CA of 1996 which was instituted on 18th November, 1996, The said appeal came up for hearing before Shri Shekhar Dhawan, Additional District Judge, Jagadhri who upheld the order of the trial Court and held that the plaintiff had been granted sufficient opportunity to lead his evidence and as such the learned trial Judge rightly declined adjournment and closed the evidence of the plaintiff by the impugned order. The learned Additional District Judge, however, even went on to examine the maintainability of the suit for declaration and recorded a finding that the suit was not maintainable. In the result the appeal was dismissed with costs vide judgment dated 9th February, 1998. It is against these orders of the learned trial Court and the appellate Court of the Additional District Judge, Jagadhri that the. plaintiff has filed this revision petition.

(3.) Upon issuance of a notice of motion to the respondents, the respondents put in appearance through Shri H.N. Mehtani, Advocate who contested the case. I have heard the learned counsel for the revisionist and the learned counsel for the respondent represented by Shri H.N. Mehtani and have carefully perused the impugned orders.